APPEARANCES
For the Appellant |
MR ADRIAN LYNCH (One of Her Majesty's Counsel) and MR MAX THOROWGOOD ( of Counsel) Instructed by: The Legal Department
London Borough of Tower Hamlets Town Hall Mulberry Place 5 Clove Crescent
London E14 2BG
|
For the Respondent |
MS RACHEL TONEY ( of Counsel) Instructed by: Messrs Royds LLP 65 Carter Lane
London EC4V 5HF |
SUMMARY
AGE DISCRIMINATION
UNFAIR DISMISSAL Polkey deduction
Council employee seconded to registered social landlord Secondment comes to an end, so that he is formally redundant Employee aged 49 and would be entitled to an early retirement pension if retained in employment to age 50 - Council fails to find him alternative employment or to permit an extension
of
the secondment, notwithstanding an offer by organisation to which he is seconded to fund his continued employment to age 50
Tribunal finds Council liable for unfair dismissal and age discrimination, on basis that:
(a) Council made insufficient effort to redeploy the Claimant; and
(b) it was motivated by a wish to avoid the additional costs
of
him taking early retirement at age 50.
Tribunal also holds, as regards remedy, that it has "little doubt" that if Claimant had not been treated unfairly and discriminated against he would have been found alternative employment.
On the Council's appeals against the finding
of
age discrimination and as regards remedy, held:
(1) that, while the Council was justified in refusing to continue the Claimant's secondment for the purpose
of
allowing him to reach age 50 and then take early retirement (which would indeed have been unlawful - Eastbourne
Borough
Council
v
. Foster [2002] ICR 234, and Hinckley & Bosworth
Borough
Council
v
. Shaw [2000] LGR 9 referred to), to take into account his impending entitlement to a pension in the application
of
its redundancy and redeployment policy constituted age discrimination (no defence
of
justification being advanced); and that the Tribunal was entitled on the evidence to conclude that the Council had done so;
(2) that the Tribunal was entitled on the evidence to find as a practical certainty that the Claimant would, but for the matters complained
of
, have been found alternative employment and that the use
of
the phrase "little doubt" did not mean that it was obliged to make a discount for the chance that he might not have done so.
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
INTRODUCTION
- The Claimant was born 11 July 1957. On 3 December 1973 he began employment with the
London Borough of Tower Hamlets
("the Council"). From 2003 he was working on secondment to a registered social landlord called East End Homes ("EEH"). On 9 October 2006 he was notified that his secondment was coming to an end and that unless alternative employment within the Council could be found he would be dismissed for redundancy. He was at the same time offered an advantageous voluntary redundancy package, which he reluctantly accepted, with the result that his employment with the Council was terminated with effect from 29 December 2006.
- On 16 March 2007 the Claimant commenced the present proceedings against the Council. He claimed both that his dismissal was unfair and that it constituted unlawful (direct) age discrimination contrary to regs. 3 and 7 (2) (d)
of
the Employment Equality (Age) Regulations 2006. The claim
of
unfair dismissal was on the basis that the Council could and should have done more to redeploy him, i.e. to find him alternative employment. The age discrimination claim was founded in the fact that at the date
of
his dismissal he was some 6½ months short
of
his 50th birthday. If he had remained in employment until then he would under the Local Government Pension Scheme have become entitled on any subsequent involuntary termination
of
his employment to an immediate early retirement pension (not subject to actuarial reduction), rather than having to wait until he became entitled to a deferred pension at (at earliest) age 60; and he contended that the Council in deciding to dismiss him when it did was motivated by a desire to avoid the cost
of
having to fund the payment
of
such a pension. (There was also a claim for breach
of
contract but that was not in the event pursued.)
- At a late stage the Council admitted that it had not complied with the statutory dismissal procedures and that accordingly the Claimant's dismissal was "automatically" unfair by reference to s. 98A
of
the Employment Rights Act 1996. Nevertheless the question
of
"substantive" unfairness required to be decided, since it would be fundamental to the approach to remedy. That issue and the issue
of
liability for age discrimination were heard over four days in January 2008 by an Employment Tribunal sitting at Stratford, chaired by Employment Judge Pritchard-Witts. The hearing
of
the evidence took up the whole
of
the period allotted for the hearing: we were told that the over-run was at least to some extent the result
of
substantial late disclosure
of
documents and witness evidence by the Council. The original intention had been that the Tribunal should decide the issue
of
remedy also. That was recognised to be unrealistic, but it was agreed that the Tribunal should deal with those remedy issues most obviously any potential Polkey issue that arose out
of
the liability evidence.
- The result
of
the over-running
of
the evidence was that closing submissions were made entirely in writing and in two tranches, with initial submissions being followed by a second round in response. Those submissions were considered by the Tribunal in chambers over three days in May and June 2008. We take the opportunity to repeat the observation which this Tribunal has already made in other cases that, although written submissions are very valuable in any complex case and will often reduce the time that it is necessary to spend on oral submissions, it is very unsatisfactory that the Tribunal should in such a case be deprived
of
the benefit
of
oral argument altogether.
- By a Judgment and Reasons sent to the parties on 1 July 2008 the claims both
of
substantive unfair dismissal and age discrimination were upheld. It is clear, and is not disputed on this appeal, that the Claimant was a loyal and able employee whose case was badly and unsympathetically treated by the Council's management and HR department over a long period.
- The Council has not appealed against the decision that the Claimant's dismissal was unfair; but it has appealed against:
(A) the decision that the dismissal
of
the Claimant constituted age discrimination; and
(B) two findings or what are said to be findings material to the issue
of
remedy.
The Claimant has himself cross-appealed; but the cross-appeal was disallowed on the sift on the basis that it was premature.
7. The Council was represented before us by Mr Adrian Lynch QC and Mr Max Thorowgood, and the Claimant by Ms Rachel Toney: both junior counsel, but not Mr Lynch, appeared before the Tribunal.
- The bundle before us contained not only the contemporary documents that were before the Tribunal but also both the witness statements and an agreed note
of
the oral evidence.
A. THE AGE DISCRIMINATION APPEAL
THE LAW
- It is convenient to start by setting out the relevant provisions
of
the 2006 Regulations. Reg. 3 (1) provides, so far as relevant:
"For the purposes
of
these Regulations, a person ("A") discriminates against another person ("B") if
(a) on grounds
of
B's age, A treats B less favourably than he treats or would treat other persons, or
(b)
and A cannot show the treatment
to be a proportionate means
of
achieving a legitimate aim."
(We will use the usual shorthand
of
"justification" to refer to the latter element in the definition.) Reg. 3 (2) provides that:
"A comparison
of
B's case with that
of
another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
By reg. 7 (2) (d):
"It is unlawful for an employer, in relation to a person whom he employs at an establishment in Great Britain, to discriminate against that person
(a)
;
(b)
;
(c)
; or
(d) by dismissing him, or subjecting him to any other detriment."
Reg. 37 contains provisions relating to the burden
of
proof in terms equivalent to those employed in the other discrimination legislation. The scheme
of
the Regulations is thus identical to that familiar from that legislation, with the single but very significant exception that direct age discrimination can be justified.
THE FACTS
- The story
of
the final years
of
the Claimant's employment is recounted in considerable detail in the Reasons. For present purposes, however, it can be summarised fairly briefly.
- The Claimant started his employment with the Council as a junior clerk. He worked his way up over the years, and in May 1998 was appointed Senior Community Consultation Officer in the Consultation and Participation Team in the Council's Housing Directorate. That job involved working with local communities where what had previously been council accommodation was proposed to be transferred to registered social landlords: that is, under the current legislation, a complex process in which, among other things, the views
of
tenants have to be ascertained by ballot.
- In early 2001 there was a restructuring within the team, and in the consequent "assimilation" exercise the Claimant was unfortunately not successful in obtaining any
of
the new posts created as a result. He was, however, assured that the Directorate could find a role for him, and he was appointed on a temporary, "unassimilated", basis to the role
of
Project Officer in the Stock Transfer Team. Although he made it clear that his goal was to move back into a permanent post, none was immediately forthcoming; and in January 2003 he accepted another unassimilated post as Senior Project Officer with EEH, to which part
of
the Council's housing stock was in the process
of
being transferred. The Claimant's role there was essentially equivalent to his previous role as a Community Consultation Officer and was primarily concerned with the work needed up to the point at which the tenants were balloted on whether they wished to transfer ("pre-ballot work"): it was thus finite in character. The appointment was for twelve months, renewable.
- At the time
of
the Claimant's original appointment to EEH, it was legally and administratively part
of
the Council. In the course
of
2004 it became legally distinct, but for reasons into which we need not go it was accepted that the Claimant's employment did not transfer and that he remained an employee
of
the Council, seconded to EEH. The Chief Executive
of
EEH was Paul Bloss, who had previously been Acting Head
of
the Council's Housing Directorate, and so had a good understanding
of
how things were done. The Claimant's immediate manager was Keith Brown.
- The Claimant's appointment as Senior Project Officer was renewed by EEH in 2004 and 2005.
- Throughout the period from 2003 the Claimant was concerned about the vulnerability
of
his position. He communicated that concern to the Council. The Tribunal found that his concerns were not properly considered. It referred in particular to advice given in August 2004 by Maureen McEleney, the Director
of
Housing Management, communicated to him the following month in a letter from Mr Coker
of
the HR Department, to in effect do nothing about his unassimilated status until his secondment expired naturally. The Tribunal was very critical
of
that advice, which meant that the Claimant was deterred from applying for permanent posts that came up over the next two years.
- It was Ms McEleney's policy generally that all secondments to registered social landlords should be brought to an end as soon as possible. By the autumn
of
2006 it was understood that the work for which the Claimant had been seconded to EEH was coming to an end: the last ballot with which it was concerned was due to take place in November. That was the understanding both
of
EEH, who told the Claimant on 27 September that his work for them was likely to come to an end in about three months, and
of
Ms McEleney, who accordingly intended and expected the secondment to terminate in accordance with her general policy. (To anticipate, the Tribunal found that this initial decision was entirely non-discriminatory: its findings
of
discrimination related to the Council's handling
of
the consequences see the first sentences
of
para. 109
of
the Reasons, set out at para. 29 below.) The ending
of
the secondment meant that the Claimant was, as an unassimilated employee, liable to be dismissed for redundancy unless alternative employment could be found within the twelve-week redeployment period prescribed by the Council's Redundancy and Redeployment Policy.
- Accordingly, the Claimant was sent the letter
of
9 October 2006 referred to at para. 1 above. That letter was sent on the authority
of
the Council's Redundancy and Redeployment Panel and was in standard form, giving him twelve weeks' notice
of
dismissal for redundancy but informing him that during that period the redeployment process would be activated. The letter encouraged him to consider applying for voluntary redundancy under a scheme which offered substantial financial incentives.
- The Claimant was aware by no later than the beginning
of
September that his secondment to EEH was coming to an end and that he would at that point be regarded by the Council as redundant. He took advice from the Council's Pensions Office. They told him that, as indicated in para. 2 above, his rights on redundancy would be fundamentally different depending on whether his employment terminated before his 50th birthday on 11 July 2007. He shared his concerns on this point with EEH, who valued his work and sympathised with his position. On 12 October Mr Bloss e-mailed Karen Scott in the HR Department seeking clarification
of
the position. He referred to the Claimant having been told that "if he can somehow manage to hang on until he is 50 next July" he would be entitled to early retirement. Shortly afterwards he offered to Ms Scott to continue to employ the Claimant until July 2007 on the basis that EEH funded half
of
his salary cost (which had previously been borne 100% by the Council). Ms Scott passed the offer on to Ms McEleney, who, however, told her that it would be "difficult to achieve given all
of
our current restructurings and our budget position". Despite that Ms Scott, by a regrettable error, at first told Mr Bloss that the secondment could continue. But the error was corrected shortly afterwards and Mr Bloss was told that the Council would not extend the secondment. On 3 November Mr Bloss responded by offering to fund out
of
EEH's own budget the entirety
of
the cost
of
the continuation
of
the Claimant's employment from the date that he would otherwise be dismissed until at least his 50th birthday. It is plain that the intention
of
the proposal was simply that the Claimant would attain age 50 and then retire; and the Claimant himself expressed that intention in the e-mail
of
21 November referred to at para. 19 below, where he said:
"I am 50 in July and was planning to retire at that age after 32 years with LBTH. At 50 I would be able to draw my pension which I had planned to do some time ago. Thus declaring I am in my last year
of
service."
(It is fair to say that the Claimant said in evidence that that was not really his true, or at least his underlying, state
of
mind. He had always wanted to stay on with the Council until normal retiring age, but he said what he did in this e-mail because
of
the pressure he was under. The Tribunal accepted this, finding at para. 108
of
the Reasons that if he had been given the opportunity the Claimant would have stayed with the Council until age 65. But for present purposes what matters is what Ms McEleney was told.)
- Mr Bloss did not specify to the Council what work he proposed that the Claimant should be doing, but it was understood that necessarily, since the pre-ballot period had concluded - it would not be the work for which he had originally been seconded. On 3 November Mr Brown e-mailed Mr Bloss saying that he did not know what work he had in mind for the Claimant but that "if you haven't got anything I can use him ... to help set up the office/filing system/tenancy files".
- In the course
of
a telephone conversation with Mr Bloss on, probably, 17 November Ms McEleney rejected EEH's offer. She also rejected a subsequent plea by e-mail from Mr
Wooster
, dated 21 November, that she reconsider her decision or meet him to discuss it. She said:
"I can confirm that the Council's decision to bringing [sic] the secondments to [EEH] to an end is not in any way related to your particular circumstances. The decision is however related to the continued need for bringing to an end secondments
of
staff to [EEH] in the light
of
both recent ballots and transfers as well as further potential transfers.
I can also confirm that the secondments have continued for longer this year than we had originally planned and it is important that this is now addressed.
Whilst your years
of
service are very much appreciated this cannot be a factor in our decision making.
I appreciate that you will be disappointed by this but the Council is obliged to look at the needs
of
the service overall."
- The Tribunal's finding in this regard is at paras. 72-73
of
the Reasons and reads as follows:
"72. Despite East End Homes offering to pay 100%
of
Mr
Wooster
's salary up to July 2007, Ms McEleney would not be persuaded to allow the secondment to continue and, without giving detailed consideration to the key principles
of
the redundancy and redeployment procedure, she stated that it was her desire to bring all secondments to an end and reacted to the offer
of
Mr Bloss relating to salary in the following way:
"Paul, if you are going to pay his salary then you can pay his bloody pension when he is 50. If he goes now we do save the pension."
This is a finding made by the Tribunal based upon what Mr
Wooster
was told by Mr Bloss. Mr Bloss did not confirm that he uttered those words to Mr
Wooster
but we are sure that they were spoken. Given the nature
of
Ms McEleney's input into the August 2004 letter and the attitude displayed at paragraph 14
of
her witness statement we are in no doubt that these words were spoken and, as we will conclude hereafter, that the trigger for her decision was the age
of
Mr
Wooster
.
73. Ms McEleney never met Mr Brown nor Mr
Wooster
to discuss the situation despite the request
of
Mr
Wooster
dated 21 November 2006. Her decision was based upon her perception that stock transfers were coming to an end (expedited by several council estates having voted "no") and as a consequence, although she was not entirely au fait with the details
of
the ongoing work that might subsist until the Autumn
of
2007, she had decided that Mr
Wooster
no longer had a job with the Housing Directorate."
- On 28 November the Claimant's union representative wrote to Ms McEleney asking for the Claimant's case to be reconsidered. A reply from Ms Scott reiterated that
"... John was seconded to undertake consultation work on pre ballot estates. The funding for 2006/07 was only agreed until the end
of
July and has now been exhausted. As there are no more pre ballot estates for EEH it was decided that John's secondment would come to an end and John was formally advised
of
this.
Neither Human Resources or Housing have advised John that this secondment would continue. We are aware that John has had discussion with [EEH] regarding an extension to his secondment. However for the above reason the Council could not agree to an extension
of
his secondment."
- It was in these circumstances that the Claimant decided that he had to apply for voluntary redundancy: if he had not done so and had in due course been made compulsorily redundant he would have forgone a payment worth some £20,000. Making such an application did not, however, prevent him remaining a candidate for redeployment.
- The Tribunal found that there were a number
of
vacancies for permanent jobs in the Council, both shortly before and during the twelve-week redeployment period, which the Claimant could have filled. Most
of
them he did not apply for, either (on the Tribunal's findings) because he believed on the basis
of
the advice received in 2004 that he should not do so until his secondment had expired or because he was not aware
of
them or for other particular reasons. He was interviewed for two
of
the posts
of
which he was made aware but he was unsuccessful. The Tribunal also found that there was worthwhile post-ballot work with EEH and on other "post-ballot estates" that the Claimant could have been asked to do, albeit that such work would have been temporary, pending the finding
of
a permanent post for him. We return to this aspect in connection with the remedy appeal. However, because he had not found alternative employment at the end
of
the redeployment period, on 22 December the Claimant's application for voluntary redundancy was accepted and his dismissal took effect from 29 December, being the provisional date identified in the letter
of
9 October.
THE ISSUES AND SUBMISSIONS BEFORE THE TRIBUNAL
- At a case management discussion in July 2007 the issues relating to age discrimination were stated as follows:
"4.1 Whether the respondent treated the claimant less favourably than a hypothetical person in comparable circumstances would have been treated on grounds
of
age, by dismissing him when it did and/or by failing to extend the secondment to July 2007. This claim is brought under regulation 3 (1) (a).
4.2 Whether any inference can be drawn from the fact that the claimant would have been entitled to enhanced pension rights on his 50th birthday, if permitted to remain in employment to that date and that East End Homes, with whom he was on sabbatical, was content to keep him to that age.
4.3 The respondent has denied age discrimination, but did not address the matter
of
justification. This is dealt with in the order set out below."
The order referred to at 4.3 required the Council to supply particulars
of
any defence
of
justification by no later than 31 August. It did not do so.
- That formulation
of
the issues is not particularly elegant. For example, the point raised at 4.2 is not an issue as such but rather one
of
the matters to be considered in connection with the actual issue defined at 4.1. But what is important for the purpose
of
the present appeal is that it recognises that two distinct bases
of
discrimination by the Council are alleged namely (i) "dismissing [the Claimant] when it did" and (ii) "failing to extend [his] secondment [to EEH] until July 2007 [i.e. his 50th birthday]". The relationship between the two alternatives appears to be as follows. The former represents a general case that the Council could and should have retained the Claimant beyond the end
of
2006 but decided not to do so in order to ensure that he was not still in employment when he reached early retirement age: it was his case that there were jobs into which he could have been redeployed if the Council had had the will to do so, and that his employment could if necessary have been extended for a short time (not necessarily by extending the secondment to EEH, though that was one possibility) to facilitate such redeployment. The latter represents a specific case based on the rejection by Ms McEleney
of
EEH's proposal. It may be debatable whether these two ways
of
putting the case were clearly distinguished in the Claimant's original Particulars
of
Claim; but the statement
of
issues for the purpose
of
the CMD is authoritative. We refer to the two ways
of
putting the discrimination claim as "the general case" and "the specific case".
- The written submissions before the Tribunal proceeded on the basis
of
those two alternative ways
of
putting the case: see, e.g., para. 9
of
the Council's Opening Submissions. We shall have to refer below to various particular aspects
of
the submissions, but it is convenient at this stage to set out in a little more detail how Ms Toney put the Claimant's general case on discrimination in her clear and full "Draft" Closing Submissions (i.e. the first tranche
of
submissions, in accordance with the arrangements referred to at para. 4 above). We can summarise it as follows:
(a) Paras. 81-91 set out in detail the basis on which she submits that the Claimant had been treated unfairly between 2001 and 2006. Among other things she submits (i) that the Council failed to make reasonable efforts to find the Claimant suitable alternative employment (para. 83 (i)), and (ii) that it should in the particular circumstances
of
his case have extended the original twelve-week redeployment period (as permitted by its Redundancy & Redeployment Policy) if he had not found a job in that time (para. 83 (j)): the latter submission was self-contained and not related to the refusal
of
EEH's offer (which is the subject
of
a separate head para. 83 (k)). The case that there were suitable alternative positions into which the Claimant could have been redeployed i.e. (i) above - is developed in detail at paras. 84-91. A number
of
points, both specific and general, are made; and a number
of
particular vacancies referred to. The Submissions are highly critical
of
the unimpressive way in which the Council complied, or failed to comply, with its obligations as a matter
of
law and under its own Policy to find alternative employment for the Claimant.
(b) Ms Toney's arguments on age discrimination are set out at paras. 92-99. She begins by referring back to the submissions on unfairness - see (a) above and inviting the Tribunal to "draw inferences" from it. At para. 94 she then sets out again in considerable detail further facts from which the Tribunal is invited to infer age discrimination. These include, but are by no means limited to, the episode
of
Ms McEleney's rejection
of
the EEH proposal. Inter alia she refers to evidence given in cross-examination by both Mr Bloss and Mr Brown (
of
which we have seen the notes) to the effect that they believed that the reason why the Claimant was dismissed when he was as opposed to being redeployed (or having his employment extended so as to facilitate redeployment) was the concern not to allow him to reach age 50: they said that that was not only their own opinion but that
of
(named) other colleagues "on the ground" with knowledge
of
the case. She also refers to the age profile
of
other secondees who were redeployed. She submits at para. 94 (n) that it would have been "the obvious thing" for the Council to extend the redeployment and that the explanation for its failure to do so was the need to dismiss him before he reached 50.
(c) Paras. 95-99 reiterate the key points on which Ms Toney relies as justifying an inference
of
discrimination. She emphasises the importance
of
the views
of
the managers on the ground as to Ms McEleney's motivation; the improbability that the failings in the Council's performance were the result only
of
incompetence; and the difference between the treatment
of
the Claimant and other employees.
THE TRIBUNAL'S REASONS
- The Tribunal's Reasons follow the conventional pattern
of
setting out the issues and the relevant law in advance
of
the findings
of
fact and the conclusions. We need only be concerned with the conclusions section, save that in para. 11, in the course
of
its review
of
the law, the Tribunal sets out the nature
of
the Claimant's case as to "the hypothetical comparator", as follows:
"In this case it is the contention
of
the Claimant that the relevant hypothetical comparator (for both elements to the discrimination claim) is a person who is not aged 49 in the same or relevantly similar circumstances as the Claimant ie a person who is on secondment to East End Homes and whose secondment has been or was in the process
of
being determined and who was without a substantive post and/or a person who was on secondment to East End Homes and whose secondment had been or was in the process
of
being determined, with a substantive post."
The two "elements"
of
the claim referred to are no doubt what we have called the general and the specific case.
- As for the conclusions, the Tribunal considered first the unfair dismissal claim. The reasoning (at paras. 94-108) is much more fully set out than that relating to the discrimination claim and is a necessary part
of
the background to it. In summary, the Tribunal held
(a) that the Council had mishandled the Claimant's case since 2001, and in particular that Ms McEleney's advice to him in 2004 not to seek a permanent position had put him at a serious disadvantage;
(b) that in the light
of
that mishandling it was incumbent on the Council to make special efforts to ensure that the Claimant was indeed redeployed when his secondment to EEH came to an end;
(c) that, so far from making such efforts, the Council again wholly mishandled the Claimant's case, making no real effort to find him alternative employment and indeed proceeding on the plainly erroneous basis that what he really wanted was to take voluntary redundancy;
(d) that if the Council had made proper efforts the Claimant could either have been found a permanent post or (if that were not possible) have been further seconded to EEH or another registered social landlord to do post-ballot work pending permanent redeployment.
Paras. 106-7
of
the Reasons summarise the Tribunal's conclusions as follows (we correct an obvious typographical error in the first line
of
para. 106 and square-bracket a plainly redundant "not" further down):
"106. Therefore, this is a case where, by failing to acquaint herself with the appropriate and singular circumstances
of
Mr
Wooster
who had been severely disadvantaged by the shortcomings
of
the Human Resources Department, Ms McEleney acted unreasonably in not ensuring that Mr
Wooster
's unique circumstances were [not] taken into account when considering his employment either within a post ballot registered home organisation or, more appropriately, within a permanent post so as to ensure that his vulnerability (to which the Respondents had contributed so materially) was brought to an end.
107. Accordingly, by failing to consult with Mr
Wooster
, by failing to explore meaningful alternatives which would have presented him as a strong candidate for redeployment and for taking into account, unlawfully, Mr
Wooster
's age in the taking
of
her decision, this dismissal is unfair ... ."
- As for the age discrimination claim, the entirety
of
the Tribunal's reasoning is to be found in para. 109
of
the Reasons, which reads as follows:
"There is no challenge to the fact that the secondment was coming to an end and therefore considerations
of
redundancy arose initially in good faith, given the budgetary constraints that were going to affect the Housing Directorate as it transferred its assets to the Registered Social Landlords. However the picture changed dramatically as events unfolded themselves between October and December 2006. These events,
of
course, were the honourable attempts by Mr Brown and Mr Bloss to mitigate the harsh effects
of
Ms McEleney's decision - a decision that she did not make clear even to her own subordinates. We accept that Mr
Wooster
was treated differently in respect
of
his singular circumstances and that treatment did not just relate to his employment status but more particularly to the fact that after decades
of
service to the Respondents he was going to fall marginally short
of
the required birth date anniversary that would trigger a pension entitlement. Given Ms McEleney's involvement back in August 2004, it is perhaps somewhat troubling to comprehend her actions in December 2006. Granted, there is the argument that she felt as a matter
of
policy that secondments should come to an end that, nevertheless, does not explain her disinclination to take appropriate steps in these unique circumstances to ensure that Mr
Wooster
was not redeployed. The entire situation,
of
course, was pointed up by the fact
of
her refusal to even countenance an extension
of
the temporary contract without even bearing the financial responsibility under her own budget for the proposition. The 100% offer made by East End Homes was not just rejected in direct terms praying in aid financial and administrative consistency but Ms McEleney betrayed herself by uttering the words that East End Homes could also pay for Mr
Wooster
's pension as well if their generosity was
of
such a high degree. The Tribunal reposes entire confidence in the accuracy and honesty
of
Mr
Wooster
and we have no doubt, bearing in mind the corroboration that was being provided by reports relating to utterances received by other officers, that it was the fact
of
Mr
Wooster
's pensionable age that was the tipping point, if we might use such a phrase, that led to the dismissal. We take this view as given all the overall circumstances in the case. It is truly difficult to understand how a Respondent
of
this size and with the resources at its disposition could have treated an employee such as Mr
Wooster
in the way that it did. Little wonder that when he was rebuffed after submitting his employment profile he was even required to consult with his general practitioner such was his anguish. Given the hypothetical comparator, we take the view that age was the reason for the decision to dismiss instead
of
redeploying Mr
Wooster
."
- That reasoning is, we have to say, not very clearly expressed. In discrimination cases it is particularly important that tribunals present their conclusions analytically, addressing step-by-step the issues to which the legislative provisions give rise - and all the more so in cases involving the more recently-recognised and thus less familiar forms
of
discrimination. No doubt in recognition
of
the unsatisfactory nature
of
the reasoning, Ms Toney pleaded on the Claimant's behalf a very full Respondent's Answer seeking to uphold the Tribunal's decision by reference to the entirety
of
the contents
of
her Closing Submissions.
- Notwithstanding that criticism, we believe that, by reference to the submissions made to it and to the earlier passages in the Reasons it is possible to identify the Tribunal's position as regards each
of
the necessary steps. We do so as follows.
- The first question is what act or acts on the part
of
the Council the Tribunal intended to find constituted age discrimination more specifically, whether it intended to find for the Claimant on the basis
of
the general or the specific case. Mr Lynch submitted that the finding was only on the basis
of
the specific case that is, in effect, that the only act
of
discrimination on the Council's part was Ms McEleney's rejection
of
EEH's offer to fund the continuation
of
the Claimant's employment until his 50th birthday. We do not accept that submission. The concluding sentence
of
the paragraph, which contains the Tribunal's actual decision, refers to "the decision to dismiss instead
of
redeploying Mr
Wooster
": although that does not directly adopt the language
of
the first alternative in the issues defined at the CMD, it is adequately clear that that is what is intended. We also note that elsewhere in the paragraph the Tribunal refers to Ms McEleney's "disinclination ... to ensure that Mr
Wooster
was [not] redeployed" (the "not" must be a slip), and treats the refusal
of
EEH's proposal as "pointing up ... the entire situation" (sc.
of
Ms McEleney's "disinclination"): that clearly treats the episode as evidential rather than as itself constituting the act
of
discrimination. (We also note in this connection the finding at para. 73 (see para. 20 above) that Ms McEleney had by November 2006 "decided that Mr
Wooster
no longer had a job with the Housing Directorate".) Thus the primary act
of
discrimination found by the Tribunal was the failure
of
the Council to continue the Claimant's employment beyond 29 December 2006: this had the consequence that he was dismissed on that date, but the focus
of
the finding rightly, on the facts and the case as put is on the prior failures. Although the Tribunal refers specifically to a failure to redeploy, it is reasonable to understand that as embracing also the failure (if a permanent job were not at that point available) temporarily to extend his contract: that was the way the case had been put (see para. 27 (b) above) and was specifically found as a failing in the decision on the unfair dismissal claim (see para. 29 (d) above).
- We accept that it is unclear from the terms
of
para. 109 whether the Tribunal intended to find for the Claimant on the basis
of
the specific as well as the general case. It seems likely from the findings in para. 73 that it did; but the point is by itself
of
no substantial importance since the consequences in respect
of
which the Claimant claims would flow from the more general finding irrespective
of
what finding was made on the specific case.
- Since this is a case
of
alleged direct discrimination (and one where the act complained
of
is not inherently discriminatory), the Tribunal is required in principle to consider the "mental processes"
of
the relevant decision-maker(s). It is accordingly necessary to identify who the decision-maker(s) was or were. The Tribunal does not discuss this question, but it is clear that it treated the sole decision-maker as Ms McEleney. That is not self-evidently correct, since a number
of
people mostly in the HR Department were involved in the acts and omissions which led to the Claimant not being redeployed and thus being dismissed when he was; and the actual operative decision was that
of
the Redundancy and Redeployment Panel. But Ms Toney in her Closing Submissions had expressly made the point that it could be assumed that the HR Departme`nt and Ms McEleney worked closely together; and she submitted to us that the Panel would also have been highly dependent on recommendations from the relevant managers. That seems to us (and particularly to the lay members, who have experience in this field) to be right; and the Council's grounds
of
appeal in fact take no point on this.
- The next question for the Tribunal was thus whether the failure to redeploy the Claimant (or otherwise extend his contract) constituted discrimination having regard to the provisions
of
reg. 3 (1) (a). Those provisions are conventionally analysed as involving a twofold test the "less favourable treatment" question and the "reason why" (or "grounds") question; but, as Lord Nicholls pointed out in Shamoon
v
. Chief Constable
of
Royal Ulster Constabulary [2003] ICR 337 (see at paras. 7-12 - pp. 341-2) and as has been reiterated on several subsequent occasions (see, e.g. per Elias P. in Ladele
v
.
London Borough of
Islington [2009] ICR 387 - at paras. 35-39 (pp. 395-6)), the two questions represent two sides
of
the same coin. The Tribunal dealt with both aspects extremely briefly. The sentence in para. 109 beginning "we accept that Mr
Wooster
was treated differently" is presumably intended as a finding
of
less favourable treatment; and the final sentence contains the phrase "given the hypothetical comparator", which must be intended as a reference back to the Claimant's formulation
of
the hypothetical comparator quoted at para. 11
of
the Reasons (see para. 28 above). Beyond that there is no analysis
of
the "less favourable treatment" question. "The reason why" question is answered in the final sentence, but there is no clear indication
of
the route by which that answer is reached. However, we think that the Tribunal's reasoning can be sufficiently discerned. It can be summarised as follows:
(a) It had already found, in the context
of
the unfair dismissal claim, that the Council had behaved very unreasonably towards the Claimant. It had found that there was plenty that could have been done to see that he was redeployed within the twelve-week period or, even if that were not possible, to extend his employment temporarily until a permanent post became available. But the Council had done nothing.
(b) That unreasonable behaviour and those failures were ultimately attributable to Ms McEleney's "disinclination" to retain the Claimant: see the middle sentences
of
para. 109 (and para. 35 above).
(c) That disinclination required explanation loc. cit. (We take this also to be the point
of
the observation in the antepenultimate sentence
of
para. 109 that the Council's conduct was "difficult to understand" though the context and the following remark about the Claimant's "anguish" tend to obscure the focus.)
(d) That the explanation lies in the wish to save the Council the cost
of
having to fund a pension if the Claimant remained in its employment at age 50, but took early retirement then or at some point subsequently, is demonstrated ("betrayed") by the terms in which Ms McEleney rejected EEH's offer; and that is corroborated by "reports relating to utterances received by other officers". The reference to the "corroborating" evidence is decidedly opaque, but we accept Ms Toney's submission that it must be to the evidence
of
Mr Bloss and Mr Brown about their contemporary understanding, and that
of
other managers "on the ground", as to Ms McEleney's motivation see para. 27 (b) above.
(The Tribunal does not in that reasoning apply the two-stage approach expounded in Igen Ltd
v
. Wong [2005] ICR 931. It did not need to do so, since it was prepared to draw an inference
of
discriminatory motivation without recourse to reg. 37. That is entirely acceptable.)
- In short, as we read it, the Tribunal accepted Ms Toney's submissions as set out at para. 27 above, though it did not (at least expressly) adopt every detail (e.g. as regards the different treatment
of
other secondees).
THE APPEAL
- In the skeleton argument and in his oral submissions on behalf
of
the Council Mr Lynch developed alternative (though to some extent overlapping) cases depending on whether the Tribunal was to be regarded as having found for the Claimant on the basis
of
the general or the specific case, though his primary case was that the Tribunal had proceeded only on the latter basis. He identified three errors
of
law, namely that it would have been impermissible in law for the Council to have accepted EEH's offer; that the Tribunal had not dealt properly with the question
of
"the hypothetical comparator"; and generally that the Tribunal's decision was inadequately reasoned. (Although all
of
those points can be found in the Grounds
of
Appeal, they are somewhat differently arranged.) We will start by considering the three points emphasised in oral argument and will then address any other points emerging from the Grounds
of
Appeal or in the oral argument.
(1) Ultra vires
- Mr Lynch submitted that it was illegitimate for the Tribunal to take into account in its decision as to Ms McEleney's motivation as it clearly did: see para. 36 (d) above her rejection
of
the EEH offer. He contended that it would have been unlawful for her to accede to Mr Bloss's proposal, in the terms in which it was advanced, and that no point can accordingly be taken against her for refusing to do so. The nature and purpose
of
EEH's proposal was, he submitted, accurately reflected in Mr Bloss's description
of
it as enabling the Claimant to "hang on until he is 50"; and Mr Brown's e-mail
of
3 November showed that, while EEH would no doubt have found him something useful to do, its proposal was not driven in any way by a perceived need to retain him because
of
the value
of
his employment to the Council. A public authority was not permitted to act in such a manner. Mr Lynch referred us to Eastbourne
Borough
Council
v
. Foster [2002] ICR 234, and the cases cited at paras. 6-9
of
the judgment
of
Rix LJ (p. 237), particularly Hinckley & Bosworth
Borough
Council
v
. Shaw [2000] LGR 9. That submission was made principally in the context
of
his primary case, i.e. on the basis that the Tribunal had found against the Council only on the specific case; but he contended that the Tribunal's error would also vitiate any finding on the general case.
- We agree that the nature
of
the proposal refused by Ms McEleney was quite clearly that the Claimant should be retained in employment in order to enable him to reach 50 and then take early retirement. We also agree that a decision to extend employment for such a purpose would be ultra vires. The case is closely analogous to Shaw. In that case the Council had given an employee a pay increase in contemplation
of
his impending redundancy with the primary purpose
of
increasing the value
of
his severance package. Bell J's decision is accurately summarised in the headnote as follows:
"... that a pay increase made by a local authority for the purpose or main purpose
of
enhancing an employee's redundancy or retirement benefits was unlawful and beyond the powers
of
the authority to make, and an agreement to make it was void, because it was not in reality a decision made in the exercise
of
its power to fix rates
of
pay but was made for an extraneous or collateral purpose; that the fact that the pay increase could be justified and seen as reasonable in itself did not save it if its real purpose was to enhance redundancy or retirement benefits ... ."
A refusal to accept such a proposal, even if it could be characterised as a distinct decision made on the grounds
of
the Claimant's age (which may be debatable), would plainly be justified: to keep its actions within the bounds
of
its lawful powers is on any view "a legitimate aim". We would indeed add that, even apart from the public law aspect, we do not believe that the effect
of
the 2006 Regulations is that in a case where an employer no longer has work for an employee he is obliged to postpone the dismissal for however long is necessary in order to entitle the employee to qualify for an age-related benefit which had not yet accrued: it is plainly a legitimate aim for an employer to dismiss employees who are genuinely redundant.
- It follows that if the Tribunal had decided the age discrimination claim only on the basis
of
the specific case we would (subject to the point referred to at para. 41 below) have held that it was wrong in law to do so. But we have held that it did not decide the claim on that basis: see para. 33 above. Ms Toney submitted that the fact that Ms McEleney could not lawfully have accepted EEH's proposal (which by the end
of
the argument before us she did not seriously challenge) did not mean that, when considering the general case, the terms in which she refused the proposal were irrelevant: they remained valid evidence
of
her motivation. She also contended that the fact that it would have been unlawful for the Council to agree to the extension
of
the Claimant's secondment to EEH for the purpose proposed by Mr Bloss did not mean that it would have been unlawful for it temporarily to extend his employment (whether by extending his secondment to EEH or to another registered social landlord or otherwise) for the distinct purpose
of
facilitating his redeployment, as she had argued before the Tribunal that it should (see para. 27 (b) above) even if that had the effect
of
taking him over age 50: such a course was expressly contemplated in its Redundancy and Redeployment Policy and was plainly lawful. We agree with both those points and accordingly reject this ground
of
challenge.
- We should mention that if we had been concerned with a finding by the Tribunal on the basis
of
the specific case Ms Toney would have submitted that Mr Lynch's argument on this point was not open to him, for two distinct procedural reasons:-
(a) She said that "the ultra vires point" was not taken before the Tribunal. We have considered the Council's "Amended Closing Submissions" and are satisfied that that is not the case: we refer in particular to paras. 42.3.7.6, 61.2 and 63.1. The point does not, it is true, receive the same emphasis in those Submissions as Mr Lynch gave it before us, and the Tribunal was not referred to the relevant authorities. Nevertheless, it was taken.
(b) She submitted that, on analysis, Mr Lynch's argument was that the rejection
of
EEH's offer was prima facie discriminatory but was justified; and she relied on the fact that the Council had deliberately not taken the opportunity to plead a justification defence (see para. 25 above). We are inclined to think that Ms Toney is correct in characterising Mr Lynch's point as a justification argument. Mr Thorowgood in his Closing Submissions before the Tribunal recognised that and sought permission, if necessary, to amend in order to take the point. The Tribunal does not address that application at all, but in our view it should if the case was to be decided on this basis have been decided in the Council's favour. It seems to us reasonably clear that what the Tribunal and the parties had in mind when deciding that any "justification case" required to be pleaded was a distinct case requiring examination
of
factual issues which would not otherwise be, or be fully, before the Tribunal. The Council's argument that it could not properly have accepted EEH's proposal is essentially an argument
of
law deriving squarely from the facts which the Tribunal was required to decide in any event. We asked Ms Toney to point to any difference in the evidence which might have been adduced if the Council had made it clear in advance
of
the hearing that it proposed to take the "ultra vires point"; but she was not able to identify any.
We have dealt with those points for completeness; but for the reasons already given they do not in fact arise.
(2) Hypothetical comparator
- In the context
of
a finding on the specific case, i.e. one limited to the rejection
of
EEH's offer, Mr Lynch submitted that the Claimant's description
of
the hypothetical comparator set out at para. 11
of
the Reasons, which the Tribunal accepted (see paras 28 and 36 above), was inadequate because it did not incorporate the facts (a) that the decision to terminate the secondment was for a non-discriminatory reason and (b) that the purpose for which the extension
of
the secondment was sought was to enable the comparator to qualify for a pecuniary benefit to which he would not otherwise have been entitled. As we understood it, this particular point was not advanced in the context
of
the Tribunal having accepted the Claimant's general case. But for the avoidance
of
doubt we should say that we believe that it is bad, at least to the extent that it is intended to go further than the "ultra vires point". We agree that the formulation quoted at para. 11
of
the Reasons is rather clumsily expressed, but it is nevertheless clear that the comparison invited by the Claimant, and purportedly performed by the Tribunal, was with a person in the same circumstances as himself in every respect except that he was not aged 49 (and, therefore, not liable imminently to take early retirement at the conclusion
of
the extended secondment). In fact, as Lord Nicholls observed in Shamoon (above), argument about the precise characterisation
of
the hypothetical comparator is often less helpful than focusing on the "reason why" question. If, as the Tribunal found here, Ms McEleney was motivated in her decision to dismiss the Claimant when she did by a wish to prevent him qualifying to take imminent early retirement at age 50, it necessarily follows that she would have treated someone to whom that risk did not apply differently.
(3) Inadequate reasons
- In his oral submissions Mr Lynch treated this head, as we understand it, simply as another aspect
of
the two main arguments considered above. He was at that point focusing on his primary case; but it is clear from the skeleton argument that it was also his submission that the reasoning for any finding on the basis
of
the Claimant's general case is inadequately explained in para. 109
of
the Reasons. We do not agree. We have already acknowledged that the drafting is a good deal less clear than it could have been, but the Tribunal's reasoning is nevertheless sufficient to allow the Council to know why it has lost: see para. 36 above.
- There is a further point in the Grounds
of
Appeal and the Council's skeleton argument which it is convenient to deal with under this head. At para. 1.2.3
of
the Grounds
of
Appeal the Council pleads that the Tribunal failed:
"... to consider whether the evidence
of
actual comparators advanced by the Council was relevant either to the comparison exercise or to any inferences which might be drawn from it and, if so, to apply it for that purpose."
At para. 4.1.5
of
the Grounds the Council identifies the actual comparators in question as Sue Thompson, Dave Matthews, Richard Joyner and Steve Richardson, all
of
whom are described as "employees ... in similar 'unassimilated' positions to Mr
Wooster
's" but who were dismissed for redundancy at or about the same time. That point was developed in the skeleton argument, where it is pointed out that the employees in question were all over 50 and so entitled to early retirement benefits on dismissal and the question is posed , at para. 55:
"If, as Mr
Wooster
contends, there were other roles into which he could have been redeployed and from which he would have found further alternative employment within the Council, why did the Council not redeploy those employees who had already become entitled to early retirement benefits in employment, saving itself those costs and dismiss four other employees ?"
The skeleton argument does not submit that that rhetorical question is so unanswerable that the Tribunal's decision as to Ms McEleney's motivation is perverse; but it does go on to submit that the Tribunal should have conducted a complete analysis
of
the evidence about the employees in question or at least "to have considered expressly the material if only to dismiss it". This is accordingly a "Meek challenge".
- Mr Lynch did not, as we understood it, explicitly pursue this point in his oral submissions, but nor was it expressly abandoned; and we should accordingly say that we see no error
of
law here. Although it appears that the Council had indeed made some reference to the circumstances
of
these employees in its evidence before the Tribunal, Ms Toney in her Closing Submissions had pointed out (see paras. 83 (b) and 94 (j) in the "draft" and paras. 15 and 54 in the follow-up submissions) that there was no evidence adduced about their circumstances and, in particular, no reason to suppose that they had undergone the same history
of
mishandling or that they were, like the Claimant, either anxious or fit to be redeployed; and we cannot see that the point was pursued in Mr Thorowgood's Closing Submissions. The Tribunal clearly had the issue generally in mind in its finding in para. 109 that the Claimant's circumstances were "unique and singular". We do not believe that it was obliged to say more.
Other points
- In the course
of
oral argument Mr Lynch contended that even if Ms McEleney had been motivated by a desire to avoid the Claimant becoming entitled to draw an immediate pension that could not properly be characterised as a decision "on the grounds
of
his age". Although he put the point in different ways, the essence
of
the argument, as we understand it, was that Ms McEleney's concern was not with the Claimant's age as such but with the fact that the Council would become exposed to substantial costs in funding an early retirement pension: his age was a mere trigger. This point does not appear to have been taken before the Tribunal and it does not appear in the Grounds
of
Appeal, and it was not argued before us in any detail. But in our view it is sophistical. Pension entitlements are inherently dependent on age or, to put it another way, are necessarily consequent (depending on the facts
of
the particular case) on a claimant attaining a particular age. In those circumstances the distinction propounded by Mr Lynch is not valid. It does not
of
course follow that less favourable treatment
of
an employee on account
of
his attaining pensionable age necessarily constitutes discrimination, because it may be capable
of
being justified; but that is another matter.
- At para. 4.1
of
the Grounds
of
Appeal the Council pleads that the three sentences
of
para. 109 which precede the final sentence demonstrate that the Tribunal fell into the "Zafar heresy" (see Zafar
v
. Glasgow City Council [1997] ICR 700) that is, that it regarded the fact that the Claimant had been unfairly treated as raising at least a prima facie case that he had been discriminated against. We do not accept that submission. The Tribunal was entitled to regard the unreasonableness
of
the Council's behaviour as a relevant factor in the drawing
of
the inference
of
discrimination, but it was not the only factor relied on: its conclusion was clearly based on the combination
of
that unreasonableness and the factors specifically suggesting that it had been motivated by the Claimant's age which are identified at para. 36 (d) above.
- As we understand the position, the Claimant would only have been entitled to take early retirement at age 50 if he had no permanent job. Logically, therefore, Ms McEleney's concerns about his reaching that age should not have been a disincentive to the Council redeploying him, as long as they were able to do so in the following six months. But Mr Lynch took no point on this. We think he was right not to do so. At the time that Ms McEleney's attitude to the Claimant was formed, she could not have known for certain whether he would get another job or not. If the Council had taken the option
of
extending the redeployment period (i.e. on a legitimate basis and not simply in order to let him "hang on to 50") he might still have been in an unassimilated position six months later. It would not therefore be surprising if she allowed herself to be influenced by this consideration; and certainly we do not think that the Tribunal could be said to have been perverse in concluding that she was.
CONCLUSION
- In our view none
of
the Council's challenges to the Tribunal's reasoning are made good. There was adequate material on which it could have drawn the inference that the Council's conduct in not redeploying the Claimant, or extending his employment, and instead dismissing him when it did, was motivated by a desire to terminate his employment before he reached 50; and its reasons for drawing that inference, though not very well expressed, are again adequate. In those circumstances we are not entitled to interfere in its finding. Perhaps not every tribunal would have drawn the conclusion that this Tribunal did, but that is not the question. The appeal on liability is accordingly dismissed.
B. THE REMEDY APPEAL
THE FINDINGS AND THE ISSUES
- Paras. 105 and (so far as relevant) 108
of
the Reasons are in the following terms:
"105. The next factor that must be borne in mind is whether, if fair procedures were carried out (either for statutory or Polkey purposes) the redundancy position would have been effective in any event and we unanimously take the view that it would not. With appropriate advice and attendant publication
of
potential posts we have little doubt on the evidence we have received from Mr
Wooster
that he would have been successful in obtaining a substantive and assimilated post, albeit
of
some two grades below the one he was employed at. This
of
course means that he would have secured a post which, perhaps, he might have been over qualified for but still have had the reassurance
of
a ring fenced salary level for two years. In those circumstances we have little doubt with his job record he would have obtained a more senior post commensurate with his skills in the future prior to the expiry
of
the ring fencing arrangements.
...
108. There is no reason whatsoever why appropriate measures [sc. to effect the Claimant's redeployment] should not have been taken in conformity with modern industrial practice and the statutory procedures that we have mentioned. ... It ... follows, we find, based upon Mr
Wooster
's evidence
of
his future intentions, that Mr
Wooster
had resolved to remain in the Respondents' service until his 65th birthday."
(It is common ground that the reference in the parenthesis in para. 105 to "statutory ... purposes" is wrong, since the Council's admission
of
"automatic" unfair dismissal meant that s. 98A (2)
of
the 1996 Act was not in play; but this is not a mistake
of
any significance.)
- By paras 3
of
the Notice
of
Appeal the Council appeals against:
"(b) the finding, if it be such, that the Respondent would have been employed by the Appellant until the age
of
65;
(c) the findings that the Respondent would have been redeployed to a new post two grades below his own in 2006 and have been promoted to a more senior post in two years ."
Point (b) refers to the finding in para. 108 and point (c) to para. 105. Before us counsel were agreed that the finding in para. 108 only relates to the Claimant's intention and that, while it is binding as far as it goes, it does not represent a finding that his employment would in fact have continued to that age. Accordingly point (b) is not pursued and we are concerned only with point (c).
- As regards point (c), the Council's case as pleaded in the Grounds
of
Appeal is threefold. It contends:-
(1) that the finding in para. 105 was perverse in as much as it was not open to the Tribunal on the evidence;
(2) that the finding was wrong in law because it failed to take into account the many contingencies that might have prevented the Claimant being redeployed initially or moving back to his previous level
of
earnings within the next two years; and
(3) that the Tribunal was wrong to reach a conclusion in terms that it had "little doubt" as to the matters found as opposed to making a finding as to the chances expressed in percentage terms.
We take those points in turn.
(1) "FINDING NOT OPEN ON THE EVIDENCE"
- The evidence about the availability
of
other jobs into which the Claimant might have been redeployed was not presented in the most satisfactory manner. We were told that the Council initially took the position that there were no relevant vacancies at the time
of
the Claimant's dismissal and that accordingly there were no documents to be disclosed. However, in December 2007 it disclosed two lever-arch files
of
documents evidencing all available vacancies at around the time
of
the Claimant's dismissal. It was clearly not practicable for all those vacancies to be analysed and discussed in evidence. The Employment Judge suggested that the Claimant in his evidence-in-chief identify his best examples, and he identified rather over twenty jobs which he said he would have been willing to accept. He was cross-examined on some, but not all,
of
those identified and made concessions the precise effect
of
which is debatable about a few
of
them. There was no witness from the Council who was in a position to speak authoritatively about the majority
of
the vacancies in question.
- In her "draft" Closing Submissions on behalf
of
the Claimant Ms Toney listed sixteen specific vacancies which were open in September 2006 or later (though not beyond the end
of
December) which the Claimant had identified in his evidence as jobs that he could have done (though in some cases he acknowledged that he would have required a degree
of
training): see paras. 89-91. (The relationship between those sixteen and the twenty or so referred to above is unclear, but nothing turns on this.) She accepted that some
of
the vacancies had advertised closing dates prior to 9 October; but it did not follow that they were irrelevant - partly because it was her case that the end
of
the secondment could have been seen coming from (at least) the end
of
August and partly because the vacancies were being relied on essentially as illustrating that there were plenty
of
jobs that the Claimant (who had very broad administrative experience) could have done. In connection with the latter point she noted that no disclosure had been made
of
vacancies occurring after 31 January and that it was part
of
the Claimant's case that if redeployment had not been possible before the end
of
the twelve-week period there should have been an extension.
- In his written submissions in response to Ms Toney's submissions Mr Thorowgood did not deal in detail with the sixteen vacancies, but he submitted that half
of
them were with EEH or another registered social landlord called Poplar HARCA and "so not within [the Council's] gift" - that is, more precisely, that the employers in question were not obliged to give the Claimant any preference. He submitted that the most that the Council could do was to draw such vacancies to the attention
of
redeployees: he said that it had done so (though the Tribunal subsequently found that the Claimant had received no such notice see para. 67
of
the Reasons, quoted below).
- At para. 67
of
the Reasons the Tribunal found as follows:
"After 31 August 2006 at least 14 vacancies existed within the Respondents' Directorates that Mr
Wooster
's profile could have matched, albeit in some cases with an amount
of
training. It also has to be added that in respect
of
one
of
those appointments training is expressly offered. These positions are set out below and have closing dates just prior to the notification
of
the redundancy and within the redeployment period. They relate to posts which are either in East End Homes, the Poplar organisation known as Poplar HARCA or within a variety
of
the Respondent's Directorates. None
of
them were brought to the attention
of
Mr
Wooster
despite the fact that he was meant at various times to be the professional responsibility
of
nominated members
of
the Human Resources Directorate."
The positions were "set out below" at para. 90
of
the Reasons, where the Tribunal listed sixteen vacancies in some detail. At paras. 91-93 it referred to three further positions. These are essentially the same as those relied on by Ms Toney in her submissions. (Such slight discrepancies as there appear to be in the numbers are, again, not significant.) It was against that background that the Tribunal made the finding in para. 105.
- Para. 69
of
the Council's skeleton argument (which essentially reproduces para. 7.1
of
the Grounds
of
Appeal) makes seven points about the vacancies referred to by the Tribunal, which we consider in turn.
- First, it is submitted that only three
of
the vacancies were for jobs within two grades
of
the Claimant's. That is true but irrelevant. The submission appears to have been made on the basis that the two-year salary protection which is extended to redeployed employees does not extend to redeployment more than two grades down. A statement to that effect appeared in the Council's letter
of
9 October, but it was acknowledged before us that the Council had in fact accepted before the Tribunal that that was wrong and that there was no such limit.
- Secondly, it is said that in respect
of
three
of
the vacancies the closing date was in January 2006 and that for five more it was prior to 9 October: it is also said that only four remained open on 17 November. Ms Toney did not challenge those facts. We accept that on that basis the three vacancies with a closing date in January were unavailable at the relevant time (though they may remain
of
interest for illustrative purposes); but that revision could not affect the overall picture. The point about the five with a closing date prior to 9 October had been acknowledged by Ms Toney herself in her submissions and by the Tribunal. But the Tribunal was entitled to regard them as relevant for the reasons given at para. 55 above: the issue is what would have happened if the Claimant had been treated fairly.
- Thirdly, the point made by Mr Thorowgood to the Tribunal (see para. 56 above) is repeated. Ms Toney accepted that it was good as far as it went but submitted that it was not a complete answer: the fact that EEH and Poplar were not obliged to give the Claimant preference did not mean that they would not have given him a vacancy - and Ms Toney submitted that his chances would in fact have been good because
of
his experience in EEH.
- Fourthly, it is pointed out that EEH had not offered the Claimant any
of
its vacancies, despite having had him working for them for three years; and it is submitted that that casts doubt on any suggestion that he would have been found permanent employment with them. Ms Toney objected that this point had not been taken before the Tribunal or put to Mr Bloss or Mr Brown when they gave evidence. In our view that is plainly a good objection. In fact the Respondent's Answer puts forward some plausible reasons why the point may be a bad one in any event (see para. 35.2.3).
- Fifthly, it is said that two
of
the five vacancies with the Council itself were unassimilated. Ms Toney acknowledged that but submitted that it was
of
no real significance given that three were permanent.
- Sixthly, it is pointed out that none
of
the vacancies within the Council were in the Housing Directorate and that it was thus less likely that the Claimant would have been appointed to them. This point too was not taken below, but in any event it is simply a matter to go into the overall assessment. The Respondent's Answer again puts forward some good reasons why the point may be
of
limited weight (see para. 36.3).
- Seventhly, a particular point is made with regard to one
of
two positions at EEH which the Tribunal found (at para. 92
of
the Reasons) that the Claimant failed to apply for owing to a misunderstanding: it is said that the evidence does not support the finding that there was a misunderstanding and that the inference must be that the Claimant would not have been interested in the position because it was too lowly-graded. We decline to become engaged in a detailed analysis
of
the evidence because even if the point were well-founded it is inconceivable that it could have any effect on the Tribunal's overall assessment.
- In summary, we are not satisfied that these points, individually or collectively, demonstrate that the Tribunal was not entitled to make the finding that it did in para. 105. It must be recalled that the finding was not that the Claimant would have definitely obtained this or that particular (permanent) job; but simply that, if he had been fairly treated, he would have obtained one
of
the jobs identified (or, possibly, in the event
of
an extension, a similar job). That is not, as Ms Toney reminded us, an outlandish conclusion. The Claimant was an experienced administrator, with a good record, working for one
of
the largest local authorities in
London
, and willing to take a drop in grade if necessary. The Tribunal clearly looked carefully at the detailed evidence and the submissions made on the basis
of
it as to which, it is to be noted, the Council had only made limited submissions in response and reached a conclusion which it was entitled to reach.
(2) CONTINGENCIES
- This point was not pursued in the Council's skeleton argument or Mr Lynch's oral submissions. There is nothing in it in any event. In so far as the "contingencies" referred to are those affecting the availability
of
suitable employment in the redeployment period (or any subsequent extension
of
it) and whether the Claimant would have been offered and/or accepted such employment, those were inherent in the assessment made and analysed above. "External" contingencies such as death or illness would have no materiality since the Tribunal was not having to speculate about a future period. As regards the finding that at the end
of
two years the Claimant would have got back up to his previous grade, contingencies
of
that character were, we accept technically relevant since the hearing took place only about half-way through the relevant period; but in practice there could be no obligation to make such a discount for such contingencies in respect
of
a period
of
less than twelve months. The position will be different if it proves necessary at the remedy hearing to make an award for an extended period
of
future loss
of
earnings.
(3) "LITTLE DOUBT"
- Mr Lynch's submission was that the phrase "little doubt" necessarily implied that the Tribunal felt some doubt; and that it should have reflected that doubt by making an appropriate percentage evaluation. That is to read the decision far too literally. The use by the Tribunal
of
the phrase "little doubt" is plainly no more than a faηon de parler. It means that it regarded it as a practical certainty that the Claimant would have been found suitable alternative employment (and recovered his original grade, if necessary, by the end
of
the protected period) or, to put it another way, that there was no realistic chance that he would not have done so. That is in principle a perfectly acceptable finding: the Polkey line
of
authorities does not require discounts to be made for chances that a tribunal regards as too remote to require reflection in what is inevitably an imprecise exercise. The Council may consider it an over-generous finding on the facts; but we have already considered and rejected its submissions that it was perverse.
CONCLUSION
- The Tribunal made an assessment
of
the Claimant's prospects if he had been treated fairly and/or without discrimination on the grounds
of
his age (we note in passing that it was not suggested that different assessments were required in respect
of
the two bases
of
liability) which had regard to the evidence and which betrays no error
of law. The appeal on the remedy issue must be dismissed.